The MCA has often been praised for its succinct and elegant construction (such praise, obviously, does not extend to the deprivation of liberty safeguards), and the provisions on restraint are a case in point. The MCA does not create any new torts or offences of ‘unlawful restraint’[1]; instead it codifies a general defence against criminal charges or litigation for acts which would otherwise be a breach of a person’s common law or statutory rights. In order to apply this defence, Section 5 MCA requires that a person takes steps to establish whether P has capacity in relation to any act in connection with care and treatment, and if they lack capacity any acts done must be in P’s best interests. Section 6 MCA places further conditions upon the lawful use of restraint: it must be believed to be necessary to prevent harm to P, and it must be a proportionate response to the likelihood and severity of the harm that would befall P without restraint. The general principles of the MCA further refine the conditions under which this defence can be applied, in particular that before an act is done ‘regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action’ (MCA s1(6)).

Since working in services where I have been forced to rely upon restraint in order to prevent harm coming to a service user, I have wondered how far the courts would take into account the wider circumstances which led to restraint being necessary in the first place. Oftentimes from the perspective of individual care staff restraint will be necessary in order to prevent harm, because the services themselves have been badly commissioned or designed to manage particular risks. I have, for instance, encountered services where individuals might spend many hours of the day on ‘reins’ to prevent them coming to harm in poorly secured and designed environments. For the individual care worker, letting go of the reins would almost certainly result in harm befalling the individual they care for – but there are wider questions around why the care plan has not ensured there are spaces where that person can move more freely within a safe, secure and stimulating environment. In these two judgments, the Court of Protection approach to restraint is to treat it as a care planning and commissioning issue, rather than focussing on myopic justifications for individual, isolated acts. Consequently, if a service finds itself repeatedly using restrictive practices to prevent harm, the first consideration should be whether the care plan addresses these risks.

In neither case does the court conclude that restraint should never be used. In fact, in the case of Re P there was concern that because of reluctance by care staff to use restraint, P might be endangered by a care plan that did not acknowledge the life-threatening nature of the risks were restraint not used [32]. The independent social worker recommended that care staff went on an accredited training program on physical intervention, and that the training focus on the practical rather than theoretical. Furthermore, she recommended improved practices around care planning and documentation of restraint, and better staff handovers to help prevent the need for interventions arising. Following on these recommendations the local authority developed a new care plan for P, and issued new policy guidance on ‘Supporting People with Challenging Behaviour including Physical Intervention Policy Standards’ [36]. The court endorsed the resultant care plan [39]. No specific guidance was set out that must be followed by local authorities, but the case does reflect an approach that emphasises the role of care planning, commissioning, policy guidance and staff training. This is clearly preferable to leaving individual staff members to ‘fire fight’ unacknowledged and unaddressed risks with improvised restrictive interventions.

The case of Re C considers the lawful conditions for the use of physical interventions in considerably more detail. Because the case was situated in a school environment, there was some discussion as to what legal framework should apply. The judgment acknowledges that s550A Education Act 1996 permits members of school staff to physically restrain pupils to prevent them committing an offence, damaging property or persons, or ‘engaging in any behaviour prejudicial to the maintenance of good order and discipline’. Although there is undoubtedly overlap between the criteria, the Education Act seems to me to be more permissive of restraint than the conditions laid down in the MCA; in particular the powers to use restraint for the promotion of good order and discipline. We should perhaps be alert to the potential tension within specialist residential schools between approaches that seek to modify an individual’s behaviour to conform to institutional discipline and good order, and the ideals of person-centred care.

The judgment suggests that once over the age of 16, the courts will be more willing to apply the principles of the MCA. The school and local authority asserted that by preventing C from leaving the room when undressed they were protecting his privacy and dignity, and preventing ‘inappropriate’ exposure of his naked body to other pupils at the school [4], [20]. The approaches to his nakedness by different experts gave rise to alarmingly divergent solutions. The school’s own psychologist seemed to take the view that E’s nakedness reflected a failure to adapt to social norms:

‘C treats people as sensory objects and he will be denied that contact if he is inappropriately naked. He needs to learn the skill of recognising what are acceptable social boundaries, something autistic sufferers do not always understand but which C could be taught by consistent, repetitive routines’ [75]

Consequently, the approach taken by the school to address C’s nakedness seems to be linked to some kind of Orwellian sounding ‘programming approach’ [29]. Very little other information is given about this program, but it sounds as if it may be linked to behaviourist approaches that use positive reinforcers and ‘aversives’ to modify behaviours. The evidence of other experts, by contrast, was that C’s desire to be unclothed arose because ‘C feels the equivalent of neurological pain at certain times when his skin is touched and his desire to be naked is a form of tactile defensiveness’ [29]. Consequently the approach recommended by these experts was to develop a care plan that acknowledged C’s sensory sensitivity, and allowed him to move freely around his home unclothed. Ultimately this would require a highly individualised service with high staffing ratios, specially trained staff and good continuity of care; it was acknowledged that placements that could meet C’s needs were a scarce and expensive resource [77].

As noted, s6 MCA is fairly succinct and non-specific in relation to the lawfulness of particular forms of restraint. By contrast, the Mental Health Act 1983 (MHA) code of practice sets out stringent conditions and safeguards for the use of seclusion. All hospitals are required to have policies on the use of seclusion [15.6], and the code of practice sets out conditions for monitoring and review of secluded patients for their own safety. All staff involved in using physical interventions, including seclusion, should have training in ‘physical monitoring and emergency resuscitation techniques’ to protect patient safety [15.57]. Perhaps most important of all are the conditions for the use of seclusion:

Seclusion should be used only as a last resort and for the shortest possible time. Seclusion should not be used as a punishment or a threat, or because of a shortage of staff. It should not form part of a treatment programme. Seclusion should never be used solely as a means of managing self-harming behaviour. Where the patient poses a risk of self-harm as well as harm to others, seclusion should be used only when the professionals involved are satisfied that the need to protect other people outweighs any increased risk to the patient’s health or safety and that any such risk can be properly managed. [15.45]

The local authority had submitted that the MHA code of practice does not apply to seclusion as used in schools [69], however the court noted that:

‘Whether the MHA 1983 Code of Practice should apply by analogy to children and young persons in schools which are children’s homes but whose learning disability does not fall within the definition of a mental disorder has not been argued before this court. At least so far as this school and this organisation are concerned it is conceded that in the absence of statutory control over seclusion and restraint in that context, the MHA 1983 Code of Practice should be applied as good practice. With respect, I agree. It would be unacceptable for C as an incapacitated child to be secluded or restrained without reference to best practice guidelines and that should apply to other children and young persons in the same or similar circumstances. A decision maker including a court has to make a decision for an incapacitated child in accordance with best interests and that of necessity includes a consideration of best practice not least so as to determine whether any less restrictive options are available. The expert evidence accepted by the court in this case is clear, the best practice is contained in the MHA 1983 Code of Practice. This court would have been constrained to consider it and apply it as best it could to its own determinations even if it had not applied to C as a matter of law. This conclusion no doubt has implications for other young people with serious learning disabilities who are in residential care.’ [71]

In effect, therefore, the Court of Protection has imported the MHA code of practice guidance on the use of seclusion into non-mental-health settings. It also states that in order for physical interventions more generally to be lawful, it must comply with ‘best practice’ guidance. For young people with learning disabilities, like C, this includes the Department of Health Guidance for restrictive physical interventions for people with learning disabilities; Working Together to Safeguard Children. The court notes that this could have wide reaching implications for other residential care services for people with learning disabilities; I see nothing in this judgment, however, that suggests it should not also apply to day centres (where I have known seclusion to be used), or services for other user groups, in particular dementia care. Whether, and how, care service providers and educational establishments are made aware of these heightened legal standards on the use of best practice guidance on seclusion and physical interventions, is another matter. Pending the future hearing on whether C’s Article 3 and 8 rights were infringed, it may be that failure to have regard for best practice guidance – including the MHA code of practice – could amount to a serious human rights violation.

The next post will consider how these rulings relate to the evolving meaning of ‘deprivation of liberty’ in the Court of Protection.

[1] Bar the new s44 offence of intentional neglect or ill-treatment of a person who lacks capacity.

About The Small Places

The Small Places blog is written by Lucy Series, you can read more about her and the blog on the 'About' page.

Blogs, including this blog, should never be relied upon as a source of legal advice. They may be out of date, inapplicable to your circumstances, or just plain wrong. If you need to find a solicitor, you could try the Law Society's find a solicitor webpage. The Mental Health Lawyers Association also list solicitors who do Court of Protection work. Some members of the Bar Pro Bono Unit do Court of Protection work.

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